(a)
Unavoidable. If the delay in
reply by applicant or patent owner was unavoidable, a petition
may be filed pursuant to this paragraph to revive an abandoned
application, a reexamination prosecution terminated under §§
1.550(d) or
1.957(b) or
limited under § 1.957(c), or a lapsed patent. A grantable
petition pursuant to this paragraph must be accompanied
by:

(3)
A
showing to the satisfaction of the Director that the
entire delay in filing the required reply from the due
date for the reply until the filing of a grantable
petition pursuant to this paragraph was unavoidable;
and

(4)
Any
terminal disclaimer (and fee as set forth in §
1.20(d)) required pursuant to
paragraph (d) of this section.

(b)
Unintentional. If the delay
in reply by applicant or patent owner was unintentional, a
petition may be filed pursuant to this paragraph to revive an
abandoned application, a reexamination prosecution terminated
under §§ 1.550(d) or
1.957(b) or
limited under § 1.957(c), or a lapsed patent. A grantable
petition pursuant to this paragraph must be accompanied
by:

(3)
A
statement that the entire delay in filing the required
reply from the due date for the reply until the filing of
a grantable petition pursuant to this paragraph was
unintentional. The Director may require additional
information where there is a question whether the delay
was unintentional; and

(4)
Any
terminal disclaimer (and fee as set forth in §
1.20(d)) required pursuant to
paragraph (d) of this section.

(c)
Reply. In a nonprovisional
application abandoned for failure to prosecute, the required
reply may be met by the filing of a continuing application. In a
nonprovisional utility or plant application filed on or after
June 8, 1995, and abandoned for failure to prosecute, the
required reply may also be met by the filing of a request for
continued examination in compliance with § 1.114. In an
application or patent, abandoned or lapsed for failure to pay
the issue fee or any portion thereof, the required reply must
include payment of the issue fee or any outstanding balance. In
an application, abandoned for failure to pay the publication
fee, the required reply must include payment of the publication
fee.

(d)
Terminal
disclaimer.

(1)
Any
petition to revive pursuant to this section in a design
application must be accompanied by a terminal disclaimer
and fee as set forth in § 1.321
dedicating to the public a terminal part of the term of
any patent granted thereon equivalent to the period of
abandonment of the application. Any petition to revive
pursuant to this section in either a utility or plant
application filed before June 8, 1995, must be accompanied
by a terminal disclaimer and fee as set forth in §
1.321
dedicating to the public a terminal part of the term of
any patent granted thereon equivalent to the lesser
of:

(i)
The period of abandonment of the application;
or

(ii)
The period extending beyond twenty years from the
date on which the application for the patent was
filed in the United States or, if the application
contains a specific reference to an earlier filed
application(s) under 35 U.S.C.
120, 121, or 365(c), from the date on which
the earliest such application was
filed.

(2)
Any
terminal disclaimer pursuant to paragraph (d)(1) of this
section must also apply to any patent granted on a
continuing utility or plant application filed before June
8, 1995, or a continuing design application, that contains
a specific reference under 35 U.S.C.
120, 121,
or 365(c)
to the application for which revival is
sought.

(3)
The
provisions of paragraph (d)(1) of this section do not
apply to applications for which revival is sought solely
for purposes of copendency with a utility or plant
application filed on or after June 8, 1995, to lapsed
patents, to reissue applications, or to reexamination
proceedings.

(e)
Request for reconsideration.
Any request for reconsideration or review of a decision refusing
to revive an abandoned application, a terminated or limited
reexamination prosecution, or lapsed patent upon petition filed
pursuant to this section, to be considered timely, must be filed
within two months of the decision refusing to revive or within
such time as set in the decision. Unless a decision indicates
otherwise, this time period may be extended
under:

(1)
The
provisions of § 1.136 for an abandoned application
or lapsed patent;

(2)
The
provisions of § 1.550(c) for a terminated ex parte reexamination
prosecution, where the ex
parte reexamination was filed under §
1.510;
or

(3)
The
provisions of § 1.956 for a terminated inter partes reexamination
prosecution or an inter
partes reexamination limited as to further
prosecution, where the inter
partes reexamination was filed under §
1.913.

(f)
Abandonment for failure to notify the
Office of a foreign filing: A nonprovisional
application abandoned pursuant to 35 U.S.C.
122(b)(2)(B)(iii) for failure to timely
notify the Office of the filing of an application in a foreign
country or under a multinational treaty that requires
publication of applications eighteen months after filing, may be
revived only pursuant to paragraph (b) of this section. The
reply requirement of paragraph (c) of this section is met by the
notification of such filing in a foreign country or under a
multinational treaty, but the filing of a petition under this
section will not operate to stay any period for reply that may
be running against the application.

(g)
Provisional applications: A
provisional application, abandoned for failure to timely respond
to an Office requirement, may be revived pursuant to this
section. Subject to the provisions of 35 U.S.C.
119(e)(3) and § 1.7(b), a
provisional application will not be regarded as pending after
twelve months from its filing date under any
circumstances.